Answers Posted By Neil Klingshirn

Answer to Posting necessary?

The law does not require an employer to post jobs.

Absent a union contract or some other commitment by an employer to do so, an employer does not have to post and interview before filling a position. However, an employer's failure to post or advertise the availability of a position may open it up to a charge of discrimination if it uses the no posting policy to fill the position with its hand-picked, non-minority candidates.



posted Aug 24, 2001 12:27 PM [EST]

Answer to can they turn my job into part time and hire some one else for the other half of my job

The reason they selected you for layoff is what matters

An employer has the right to terminate your employment at any time. Included within this right is the option to reduce your hours by one-half before terminating your position entirely.

While an employer can terminate your employment for no reason, it cannot terminate it for an unlawful reason. Therefore, if you were not selected because of your age or gender, or if you were pushed into the part time job because of your age or gender, then either one of those employment actions may violate the anti-discrimination laws.

I hope this helps,

Regards,

Neil Klingshirn

posted Aug 22, 2001 09:35 AM [EST]

Answer to Harassed since standing up for an agreement for benefits which was later denied then allowed.

You should protect yourself against retaliation

You describe a classic retaliation scenario. You should consult with an attorney now, however, to protect yourself.

Generally speaking, once you engage in protected conduct, your employer cannot get mad and get even. However, the courts have put a number of limits on retaliation claims. For example, you need to be fired, demoted, denied a promotion or otherwise affected "tangibly" before you can go to court. A harsh review or unfair discipline is not enough of a tangible, adverse action to support a retaliation claim. However, the unwarranted discipline and harsh reviews may be evidence to support a claim that a later dismissal was retaliatory.

In addition, you need to never give the employer an excuse to terminate you. Communicate clearly with your employer and always do what you are told. Otherwise, even if there is a long history of retaliatory conduct, once you give your employer a legitimate reason for termination, you probably cannot prevail on a claim.

Again, it really helps at this point to consult with an attorney near you.

I hope this helps.

Neil.

posted Aug 13, 2001 09:12 AM [EST]

Answer to Is COPD a serious health condition for FMLA purposes?

There is no laundry list of "serious health conditions

The FMLA generally defines a serious health condition and not specifically, as with a laundry list. Check the FAQ article on this question at http://www.myemploymentlawyer.com/family-medical-leave-FAQs.htm#What%20is%20a%20serious%20health%20condition. />
Basically, if your doctor can fill out the certification, you qualify for FMLA.

Finally, I am not sure what COPD is.

Regards,

Neil.

posted Jul 31, 2001 3:20 PM [EST]

Answer to County Agency wrongful denial of FMLA

Send your friend to MyEmploymentLawyer

Hi:

The county agency does not have the "discretion" to obey the FMLA or not. If you friend has the right to be away from work intermittently due to her serious health condition, then she can take the time off. If the agency terminates her for this, she will have a claim for her lost wages and attorneys fees, plus other potential relief.

You can do little for your friend yourself. She needs to get legal advice and make sure that she is applying for FMLA leave properly. If the county terminates her, then she will probably need an attorney to take the case. That is where MEL can help.

Have your friend read MEL's FMLA facts so that she generally understands the law. Then have her locate an attorney near where she lives. She should try to get the leave to which she is entitled. If she cannot, however, she is much better off if she goes through this process with legal advice at the outset.

If you have trouble finding an attorney near you, we will represent individuals who live north of I 70 and east of I 71, if that helps.

Neil.

posted Jul 31, 2001 12:37 PM [EST]

Answer to employment offer

How to decide whether to pursue legal action

First, figure out what the promised equity stake is worth if delivered as promised. If it is not worth anything, do not pursue it.

Second, if worth pursuing, consult with an attorney to evaluate your legal options. Almost every attorney qualified to handle business/employment disputes will charge a modest consultation fee. We charge $200, which is, I think, on the high end. If this cost is prohibitive, then do not pursue the claim.

A consultation will tell you what your third step should be, if any. Some attorneys will pursue claims such as yours on a contingency fee basis. This is a valid question for you before you pay for a consultation (i.e., do you accept cases on a contingency basis?) Our firm does. Be aware that, even with a contingency fee arrangement, you will still be resonsible for the costs of the action, such as expert fees and deposition costs. This can run several thousand dollars in a matter such as yours, sometimes more.

I hope this helps.

Regards,

Neil.

posted Jul 18, 2001 08:28 AM [EST]

Answer to At Will Employment and No Notification of Firing

What you can do to help

Hi Jennifer:

Richard provided an excellent discussion of the law. I am concerned, however, that from a practical stand point the short answer is that the law will not be of much help to you. That is, employers in Ohio are generally free to play favorites, as long as they do not do so on one of the unlawful bases identified by Richard. This leaves a lot of room for favoritism, which almost everyone agrees is wrong.

The question that you asked that I liked is "what can I do to change this." The answer is to get political. On top of writing politician, you should contact and get involved with the National Employee Rights Institute. It is a dynamic and creative organization whose aim is to advance employee rights. NERI is gathering cases such as yours that show why the law needs to expand. You can visit NERI's website at www.nerinet.org. />
Best of luck,

Regards,

Neil.

posted Jul 12, 2001 09:03 AM [EST]

Answer to Denied the option of using intermittent leave that would have assisted me better.

I believe that you have a valid FMLA claim

First, a disclaimer. I am an Ohio attorney and am not licensed to practice law in your state. You need to consult an attorney in your state. The law may be different that it is in Ohio.

That said, if you were in Ohio, I believe that the employer has to provide intermittent leave if your doctor certifies that you need it. The lowest interval of time is something on the order of a quarter of an hour. The company (and union) should not be able to override your individual, statutory right under the FMLA through the collective bargaining process.

You can learn more on the department of labor's elaws at this site:

http://www.elaws.dol.gov/fmla/wren/er3.htm

I believe that you would have a valid claim to your old position, even now. You have two years to file an FMLA claims. You can file a complaint for free with the department of labor. Drill through the elaw site to learn how to do that. You can also hire an attorney. Many accept your kind of case.

I hope this helps.

Regards,

Neil.

posted Jul 11, 2001 5:20 PM [EST]

Answer to non-compete clause - promotions

You have the right to negotiate your employment contract

A court will enforce a non-compete signed as a condition of a promotion. In other words, your employer has the right to ask for this.

The picture brightens if you look at it as an opportunity to negotiate an employment agreement. For example, you should ask to limit this clause to an involuntary termination without cause. You cannot control that, so ask that it not apply. If the employer insists on being able to keep you from working even if you are fired without cause, then ask for severance pay. If they insist on the right to terminate for cause, then ask for severance only if you are terminated without cause. Point out that this is simply pay n exchange for you giving up the right to work under circumstances that you do not control.

Since you are negotiating an employment contract, be on the look out for an arbitration agreement. If you see anything in any document referring to arbitration, do not sign it until you know what it means.

If your employer presents you with too many conditions for a move up to management, then do not make the move. The mere fact that you have the offer now means you have what it takes to move up. Your challenge is to make sure that you move up with the employer that is going to be fair with you.

Best regards,

Neil.

posted Jun 26, 2001 09:44 AM [EST]

Answer to Do I have a right to earned commission?

This sounds like a constructive discharge

Julie:

You may be able to overcome the contract provision requiring you to repay the signing bonus if the choice between quitting or a different job was really no choice at all. That is, if the different job pays less or otherwise has materially different terms or conditions such that a reasonable person in your shoes would not accept it, then the legal affect is that you were forced to quit, or "constructively discharged." In that case, it would appear that you have a claim for your $10K. You will need to talk to an attorney in your area about fees and costs in order to evaluate whether to pursue it.

The COBRA issue is a different matter. You may have a claim related to the late notification if you incurred medical expenses that the insurance would have covered or otherwise were harmed by the late notice. The most important thing about the insurance, however, is to get it in place if you need to have it for your insurance.

I hope this helps.

Neil Klingshirn

posted Jun 22, 2001 4:48 PM [EST]